Wages

Section 41.1

No employer may remunerate an employee at a lower rate of wage than that granted to other employees performing the same tasks in the same establishment for the sole reason that the employee usually works less hours each week.

The first paragraph does not apply to an employee remunerated at a rate of pay which is more than twice the rate of the minimum wage.

1990, c. 73, s. 13.

Interpretation

This provision refers to an employee working on a part-time basis. Indeed, an employer cannot remunerate that employee at a rate of wage lower than that granted to other employees performing the same tasks in the same establishment for the sole reason that he works fewer hours every week.

The conditions for this section to apply are the following:

The employee must be an employee who ordinarily works fewer hours per week than other employees performing the same tasks.

In the case of an employee who works an irregular number of hours every week, it should be shown that he usually or regularly works fewer hours than other employees performing the same tasks.

It is with the "other employees performing the same tasks" that the comparison must be made.These may be employees working "full time", but also employees working "part time" who work a greater number of hours than the employee concerned. Therefore, the Act makes no distinction between "regular part time" and "casual part time".

It is the rate of wage that is compared.

There is no need to compare the wage conditions of all employees of an establishment, but rather only the rates of wage of employees who perform the same duties.

Employees must work in the same establishment.

The establishment generally refers to the physical place where the work is carried out. However, this notion does not necessarily correspond to a building or a civic address. This notion may be determined with respect to a management or activity unit governing physical facilities. For example, separate buildings may be grouped together to form a single establishment, provided that there is a management or activity unit. Conversely, it is possible to have several establishments in the same building or physical facilities when there is sufficient functional autonomy between the management or activity units found there.

As an illustration, the existence of a subsidiary having functional autonomy may be an indicator making it possible to determine the existence of a management unit or activity unit that is autonomous at the functional level.

It should be noted that major geographical separations may be indicative of separate establishments.

The reason given must not solely be that the employee works fewer hours.

The fact that section 41.1 ALS mentions "for the sole reason" necessarily implies that another reason could be invoked by the employer. Therefore, it must be determined whether there is a true and valid reason other than the number of hours worked. Thus, a rate of wage that would be based on qualifications, experience or yield would constitute a valid reason within the meaning of section 41.1 ALS.

The analysis must be made by considering the method of wage advancement in force in the enterprise. This advancement must obviously not be discriminatory for an employee who works fewer hours per week.

For example, a raise in an employee’s wage based on the accumulation of a certain number of hours worked could be allowed provided that the same calculation method is used for the other employees performing the same tasks in the same establishment and provided that this way of doing things is set out in a collective agreement or a decree or is a common practice in the undertaking.

Burden of proof

Where an employee has established that the conditions mentioned in section 41.1 ALS apply to him, it will be up to the employer to prove the existence of that other true and valid reason.Each employee individually

Each case must therefore be treated individually, and not with regard to a group of employees, since the rate of wage must be the same. For example, one cannot examine the global wage conditions of a group of part-time employees and conclude that they have approximately or overall the same rate as that paid to full-time employees.Exception

It should be noted that this provision does not apply to employees who earn more than twice the minimum wage.